2. General matters

In Rogers v The Queen (1989) 44 A Crim R 301 at 307 Malcom CJ explained that while race is not a permissible ground of discrimination in the sentencing process:

…there may well be particular matters which the court must take into account, in applying those principles, which are mitigating factors applicable to the particular offender. These include social, economic and other disadvantages which may be associated with or related to a particular offender’s membership of the Aboriginal race.

2.2 Cultural background removed as a listed sentencing factor

Following the 2006 amendments, the phrase ‘cultural background’ was deleted from s 16A(2)(m). A court is no longer expressly required to consider an offender’s cultural background in determining an appropriate sentence.

The term ‘cultural background’ was also deleted from s 19B(1)(b)(i). Cultural background is no longer a factor to which the court may have specific regard in deciding to dismiss a charge or discharge a person without proceeding to conviction.

3. Equality in treatment

The same sentencing process should apply to all offenders. A sentencing court should consider all material factors including social and economic disadvantage which exist because of an offender’s particular cultural or ethnic background. In Neal v The Queen [1982] HCA 55 Brennan J stated at [13]:

The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or of his membership of an ethnic or other group. But in imposing sentences, courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group.

The statement of principle in Neal has been cited with approval in Munda v Western Australia [2013] HCA 38 at [53]. In Munda, the majority judgment of French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ further clarified at [53]:

It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour (R v KU; Ex parte Attorney-General (No 2) [2011] 1 Qd R 439 at 475-476 [133]). Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.

4. The Fernando principles

Courts have recognised some general propositions in relation to the sentencing of indigenous offenders. These may be of assistance in the sentencing of indigenous offenders for federal offences. In R v Fernando (1992) 76 A Crim R 58 Wood J stated at [62]-[63]:

In the course of his careful and helpful submissions on sentence, Mr Nicholson QC made reference to a number of authorities and reports or papers, concerning the sentencing of aborigines including extracts from a paper ‘The sentencing of aboriginal offenders” by Justice Toohey; the recent report of J H Wooten QC concerning the Royal Commission into aboriginal deaths in custody; Regina v Neal (1982) 149 CLR 305; Regina v Davey (1980) 50 FLR 57; Regina v Friday (1984) 14 ACR 471; Regina v Yougi (1987) 33 ACR 301; Regina v Rogers and Murray (1989) 44 ACR 301 and Regina v Juli (1990) 50 ACR 31. As I read those papers and decisions they support the following propositions:

(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders’ membership of such a group.

(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.

(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.

(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.

(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

(F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.

(G) That in sentencing an Aborigine (sic) who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.

(H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.

5. Application of the Fernando principles

As I endeavoured to explain in Fernando, the eight propositions there enunciated were not intended to mitigate the punishment of persons of Aboriginal descent, but rather to highlight those circumstances that may explain or throw light upon the particular offence, or upon the circumstances of the particular offender which are, referable to their aboriginality, particularly in the context of offences arising from the abuse of alcohol.…The principles statedshould not be elevated so as to create a special class of persons for whom leniency is inevitably to be extended, irrespective of the objective and special circumstances of the case. To do so would itself be discriminatory of others.

In Bugmy v The Queen [2013] HCA 37 the majority emphasised that there is no justification for applying a different method of analysis to sentencing Aboriginal offenders than that which applies to non-Aboriginal offenders. 1 French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ stated at [37]:

An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence. In this respect, Simpson J has correctly explained the significance of the statements in Fernando (Kennedy v The Queen [2010] NSWCCA 260 at [53]):

“Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime” (emphasis added).

5.1 Deprived background

Where an individual’s background of deprivation is relied upon as mitigating factor, it is necessary to support this with evidence. In Bugmy v The Queen [2013] HCA 37, The Court stated at [41]:

In any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background.

The High Court held in Bugmy that to take general notice of ‘the systemic background of deprivation of Aboriginal offenders’ 2 is ‘antithetical to individualized justice’ 3 and says ‘nothing about a particular Aboriginal offender’. 4 The Court also noted that not all Aboriginal offenders come from deprived backgrounds: Bugmy v The Queen [2013] HCA 37, [40].

5.2 Issues relating to mitigation and aggravation

A court should be careful to consider whether relevant sentencing factors are mitigating or aggravating. In the Western Australian case of E (A Child) (1993) 66 A Crim R 14 Franklyn J stated at [19]:

…whilst the factors of Aboriginality, ethnic oppression, socioeconomic deprivation, family environment and similar matters or any of them may have relevance in a particular case to the appropriate sentence to be imposed on an offender, none of them is self-executing in the sense that its mere existence necessarily requires a reduction of the penalty otherwise appropriate to the offence. Such matters may explain, at least to some extent, motive or a lack of it, identify influences which have contributed to the commission of the offence which may or may not be mitigatory and reveal circumstances which might be relevant to the appropriateness or otherwise of a custodial term and of probation and/or parole eligibility in a particular case.

5.3 Deprived background is not a factor which diminishes in weight over time

In Bugmy v The Queen [2013] HCA 37 the High Court held that the effects of profound childhood deprivation do not diminish with the passage of time and repeat offending. The Court held at [43]:

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

6. Indigenous offenders and sentences of imprisonment

The High Court in Bugmy v The Queen [2013] HCA 37 approved the proposition in Fernando that an offender’s aboriginality may be relevant to the sentencing determination where a lengthy term of imprisonment might be ‘particularly burdensome’ 5 because of the offender’s ‘background or lack of experience of European ways’. 6

This was held to conform with Brennan J’s statement in Neal v The Queen [1982] HCA 55 that while the same sentencing principles apply irrespective of race, a court is bound to take into account ‘all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group’. 7